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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS


FOR THE THIRD CIRCUIT

No. 12-1773

UNITED STATES OF AMERICA


v.
MOHIT VOHRA,
Appellant

On Appeal from the United States District Court


for the Eastern District of Pennsylvania
(D. C. No. 2-09-cr-00546-001)
District Judge: Honorable Michael M. Baylson

Submitted under Third Circuit LAR 34.1(a)


on May 9, 2013
Before: SLOVITER, FUENTES, and ROTH, Circuit Judges

(Opinion filed: August 9, 2013)

OPINION

ROTH, Circuit Judge:


Mohit Vohra appeals his conviction of one count of conspiracy to commit money
laundering in violation of 18 U.S.C. 1956(b) and twelve substantive counts of money

laundering in violation of 18 U.S.C. 1956(a)(1)(B)(i). For the reasons that follow, we


will affirm the District Courts judgment of conviction.
I.

Background 1
On March 21, 2009, Vohra was pulled over while driving a tractor-trailer on a

highway near St. Louis, Missouri. After approximately 90 kilograms of cocaine with an
estimated street value of $2 million was discovered in the tractor, he agreed to assist the
government by making a controlled delivery of the cocaine to the shipments intended
recipient, an individual named Raj located in Philadelphia, Pennsylvania. Later in the
trip, it was discovered that Vohra was also transporting approximately 1,300 pounds of
marijuana in the trailer with an estimated street value of $1 million.
Agents of the Drug Enforcement Administration (DEA) accompanied Vohra for
the remainder of the trip from St. Louis to Philadelphia. During the trip, Vohra spoke to
Raj via telephone several times. The DEA recorded the calls. During one call, Vohra
and Raj had an exchange in Punjabi, which was translated as follows:
Raj:
Vohra:
Raj:
Vohra:
Raj:
Vohra:
Raj:
Vohra:
Raj:

Okay. How many were [unintelligible] last time . . . two or three?


Two.
Those were two, right?
Hmm.
Now are these three?
Hmm.
Are these smaller or bigger than those?
Bigger.
Bigger, okay.

We write primarily for the parties, who are familiar with the facts of this case.
Therefore, we will set forth only those facts necessary to our analysis.
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After delivering the cocaine to Raj, Vohra was arrested and charged with two
counts of narcotics trafficking, twelve substantive counts of money laundering, and
conspiracy to commit money laundering. He pleaded guilty to the narcotics offenses and
proceeded to trial on the remaining charges.
At trial, the government presented evidence that Vohra had engaged in narcotics
trafficking and that he had deposited large sums of money into his bank account over a
nine month period in amounts that greatly exceeded the income he reported on his
taxes. The discussion between Vohra and Raj was admitted into evidence, over Vohras
objection, to further show Vohras involvement in narcotics trafficking and to support the
inference that he had laundered the proceeds of illicit transactions. Raj was not tried with
Vohra, nor was Raj available to testify at trial.
During closing arguments, counsel for Vohras co-defendant Jaspreet Kaur
suggested to the jury that it was common knowledge that drug dealers do not deposit their
money in the bank. On rebuttal, the prosecutor stated: Contrary to what Mr. Miller
[Kaurs attorney] says, my experience is, and perhaps yours is that, indeed, drug dealers
do deposit money in their bank accounts. They have to do something with it. Putting it
under their pillow isnt going to do anything. Vohras motion for a mistrial based on the
prosecutors statement was denied. The District Court did not issue a limiting instruction
to the jury concerning the statement.
Vohra was convicted. This appeal followed.

II.

Discussion 2
A.

Hearsay

Vohras first claim on appeal is that the taped conversation between him and Raj
was improperly admitted at trial. We exercise plenary review of a district courts
evidentiary rulings insofar as they involve an interpretation of the Federal Rules of
Evidence; however, a district courts decision to admit or exclude evidence, if based on a
permissible interpretation of those rules, is reviewed for an abuse of discretion. United
States v. Saada, 212 F.3d 210, 220 (3d Cir. 2000).
The taped conversation between Vohra and Raj consists of two portions: Vohras
statements and Rajs statements. Vohra concedes that his own statements were
admissible as admissions under Federal Rule of Evidence 801(d)(2)(A). The District
Court admitted Rajs statements on two independent grounds: (1) as non-hearsay
admissions of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E), and (2) as
non-hearsay statements that placed Vohras admissions in context. The government has
conceded that the co-conspirator exception is an invalid basis for admitting the
conversation because Vohra was no longer a co-conspirator once he began cooperating
with the DEA. See United States v. Bobb, 471 F.3d 491, 498 (3d Cir. 2006) (noting that
the co-conspirator exception to the hearsay rule is applicable only when both the
defendant and the declarant are participating in the same conspiracy).

The District Court had jurisdiction pursuant to 18 U.S.C. 3231. We have jurisdiction
pursuant to 28 U.S.C. 1291.
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Although the co-conspirator hearsay exclusion of Rule 801(d)(2)(E) is


inapplicable, the second basis for admission was proper. Rajs statements were
admissible as non-hearsay evidence for the purpose of contextualizing Vohras
admissions. See United States v. Hendricks, 395 F.3d 173, 184 (3d Cir. 2005) (admitting
unavailable declarants statements to put defendants statements into perspective and
make them intelligible to the jury and recognizable as admissions); see also United
States v. Davis, 890 F.2d 1373, 1380 (7th Cir. 1989).
Vohra advances an additional argument that the District Court erred by admitting
Rajs statements to establish the truthfulness of those statements. This argument is
misplaced. Although Vohra is correct that Rajs statements were inadmissible to
establish the truth of the matter asserted, he overlooks the fact that the evidence was
nonetheless admissible to provide context to Vohras admissions under the rule from
Hendricks. Without Rajs statements, Vohras admissions would have been meaningless.
We therefore find no abuse of discretion in the admission of the taped call between Vohra
and Raj.
Moreover, even if Vohras evidentiary argument were meritorious, it would not
affect the outcome of this case because any error was harmless. Non-constitutional error
is harmless when it is highly probable that the error did not contribute to the judgment.
United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 286 (3d Cir. 1999) (citation and
internal quotation marks omitted). High probability requires that the court possess a
sure conviction that the error did not prejudice the defendant. United States v.
Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (citation and internal quotation marks
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omitted). Our harmless error analysis requires an examination of the scope of the
comments and their relationship to the proceedings, the extent of any curative
instructions, and the strength of the evidence against defendants. Dispoz-O-Plastics,
172 F.3d at 286.
Here, Rajs statements were admitted to show that Vohra was involved in
narcotics trafficking on multiple occasions, thus permitting the jury to infer that he was
laundering the proceeds of illicit transactions. While the conversation between Vohra
and Raj was certainly helpful to prove the governments case, there was ample additional
evidence presented at trial showing that Vohra was guilty of money laundering and
conspiracy to commit money laundering. Most notably, the government presented
evidence that Vohra was caught transporting approximately 90 kilograms of cocaine and
1,300 pounds of marijuanaan amount that was unlikely to be entrusted to a first-time
courierand that his bank accounts reflected numerous suspicious deposits that greatly
exceeded his reported income. Cf. United States v. Hardwick, 544 F.3d 565, 574 (3d Cir.
2008) (holding that the improper admission of co-defendants proffer statements
implicating the defendant was harmless in light of the overwhelming evidence of the
defendants guilt). Therefore, any error associated with admitting the conversation into
evidence was harmless.
B.

Vohras Motion for a New Trial

Vohra also asserts that the District Court should have granted him a new trial
based on the statement made by the prosecutor on rebuttal during closing arguments. Our
review of a motion for a new trial is plenary. United States v. Liburd, 607 F.3d 339, 342
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(3d Cir. 2010). However, not all prosecutorial misconduct will require a new trial. Id. at
344. We must determine whether the misconduct so infected the trial with unfairness as
to make the resulting conviction a denial of due process in light of the entire proceeding.
United States v. Morena, 547 F.3d 191, 194 (3d Cir. 2008) (internal quotations omitted).
Therefore, even if the governments conduct was improper, we must affirm the
conviction if the error was harmless. United States v. Vosburgh, 602 F.3d 512, 540 (3d
Cir. 2010).
Looking to the three-prong harmless error analysis discussed above, even if we
assume that the prosecutors statement was improper, any error was harmless. The
prosecutors statement was a direct response to Kaurs attorneys appeal to the jurys
common sense and was limited in scope. Cf. Dispoz-O-Plastics, 172 F.3d at 288
(prosecutors appeal to jurys common sense regarding credibility of witnesses was not
improper). In light of the other evidence presented at trial that strongly suggested
Vohras guilt, we find that any error attributable to the prosecutors statement was
harmless.3
III.

Conclusion
For the foregoing reasons, we will affirm the District Courts judgment of

conviction.

Kaur also raised this issue in his appeal. We rejected his claim for the same reasons
articulated above. See United States v. Kaur, No. 12-1795, 2013 WL 1749523, at *3 (3d
Cir. Apr. 24, 2013).
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